Michigan Indian

More Impacts of Prop. 2 — Financial Aid

Matthew L.M. Fletcher

As the news about the 2007-2008 academic year comes out, we will be following the impact of Prop. 2 on minority students and communities in Michigan, with an emphasis on American Indian students.

Details from the Detroit News: “A record number of new freshmen flocked to Michigan public universities this fall, but some scholarship opportunities for the 40,674 students have dried up in light of Proposal 2.

“The constitutional amendment passed by voters last November not only banned preferences based on race and gender in public university admissions, but also shut down financial aid programs geared toward those targeted groups.

“Scholarships for women in engineering, single mothers, Hispanic scholars and high-achieving black students are among the programs that have been eliminated or altered at some of the state’s 15 public universities. In general, university leaders said they didn’t take away scholarships they promised students before Proposal 2 took effect Dec. 23, but the challenge has been how to help incoming classes without violating the law.”

***

“The Alumni Association of the University of Michigan decided this fall to establish race- and gender-based scholarships after assurances from lawyers that doing so wouldn’t violate the law, leaders said.

“The board set aside $650,000 in seed money and anticipates awarding the first scholarships for incoming students in 2008.

“We wanted to be able to make it possible for alumni and others who want to provide support to do so,” said alumni association president Steve Grafton. “They can’t do that with the university and we can provide that opportunity for them.

“And we are really interested in helping to maintain and build the diversity at the university. This is a recruiting tool that will help the university recruit the very brightest students of color, women in engineering and men in nursing,” he said.

“Much of the debate over Proposal 2 has focused on the University of Michigan, the only state university that admittedly used affirmative action in undergraduate admissions. But the impact of the new constitutional amendment can be felt around the state, as scholarships for students based, in part, on race, gender or ethnicity were not uncommon.

“Universities initiated reviews of all of their scholarship programs. Central Michigan University found four scholarships that involved preferences. CMU didn’t change two slated for Native Americans because they believe those scholarships are based on sovereignty status, not on race.“

New Blog Design

ilpc1 Comment

We’ve redesigned the look of Turtle Talk already, and wanted to note that the artwork at the top of the page is part of a larger piece done for the Indigenous Law and Policy Center by Zoey Woods-Salomon. Zoey is an citizen of the Ottawa Nation, Wikwemikong Unceded Indian Reserve on Manitoulin Island, ON, Canada. Her longer biography is here, which includes links to selected pieces of her work.

In this small strip of the larger work, the three suns represent the People of the Three Fires, and the twelve rays represent the twelve federally recognized tribes in Michigan.

Two Casinos in Romulus? Unlikely….

Matthew L.M. Fletcher1 Comment

From the Romulus Roman: “It’s possible that the City of Romulus may house two casinos, after all.”Representatives from the Sioux Indians contacted the city recently to restart negotiations that had halted in 2004. The tribe successfully lobbied the city for a ballot issue in 2003 that paved the way for gaming in the city.

“Mayor Alan Lambert said the interest of the tribe could mean that two casinos as opposed to one could be constructed near Detroit Metropolitan Airport.”

***

“In 2005, the Hannahville Indian Tribe signed a deal with the city to open a casino on Vining Road near the airport. State and federal approvals are still pending on that proposal.”

I think they mean “Sault” Indians, not “Sioux” Indians. In any event, the chances of this happening any time soon are paltry at best.

Native Heritage Month at MSU

Matthew L.M. Fletcher

You can download the calendar here: MSU Native Heritage Month Calendar

Highlights include Pat LeBeau’s talk on mascots on the 7th and NALSA’s panel, Tribal Extinction, featuring Marilyn Vann of the Cherokee Freedmen, on the 9th.

U-M Minority Admissions Drops Slightly

Matthew L.M. Fletcher

From AP: “Fewer black and American Indian students are attending the University of Michigan’s main campus this fall in the wake of the passage of an anti-affirmative action ballot proposal.”Total enrollment increased by 1,017 students, or 2.5 percent, to more than 41,000 this fall, a record. But the school said Thursday that black student enrollment dropped 3.3 percent and the number of American Indians decreased 1.2 percent.

“Hispanic student enrollment was up 1 percent, while the number of white students increased 2.1 percent.”

From the Chronicle: “The University of Michigan at Ann Arbor said today it had managed to avoid a steep decline in the number of black, Hispanic, and Native American students in this fall’s entering freshman class, the first to be admitted after Michiganders voted a year ago to amend their state’s Constitution to prohibit public higher-education institutions from considering applicants’ race or ethnicity.

“Officials at the university cautioned, however, that much of this fall’s class was admitted before its admissions office began complying with the ban on affirmative-action preferences, known as Proposal 2, on January 10.

“Theodore Spencer, the university’s associate vice provost and director of undergraduate admissions, said in a statement issued yesterday that “the full impact of Proposal 2 is not reflected in the current year’s enrollment numbers because it took effect midway through the admissions cycle.” The university will “have a more accurate indication of its potential impact in fall 2008,” he said.”

Little Traverse Bay Bands et al. v. Great Spring Waters & Engler

Matthew L.M. Fletcher

In 2002, the three Michigan Ottawa tribes sued Great Spring Waters & Governor Engler over the State’s granting of rights to take millions of gallons of water from mid-Michigan’s water table — a sweetheart deal if there ever was one. The tribes sued under the Water Resources Development Act of 1986, but there was no cause of action and the district court dismissed the action. The tribes did not appeal.

Here is the motion to dismiss: Motion to Dismiss

Here is the Tribes’ response, plus an exhibit: Response Brief + Exhibits

Here is the reply brief: Reply Brief

Here is the order dismissing the case: Opinion

The tribes chose not to bring claims based on the treaty rights they had established in United States v. Michigan. At some point, we expect tribes to bring treaty claims in the environmental protection context — see our MSU Law Review paper.
There has been a fair amount of scholarly commentary on the case, such as this student note in the Columbia Law Review and this paper in the Vermont Journal of Environmental Law.

Michigan Court of Appeals: Moses v. Dept. of Corrections

Matthew L.M. Fletcher1 Comment

Earlier this year, the Michigan Court of Appeals decided Moses v. Dept. of Corrections, a case brought by a convict who committed a crime on the Isabella Reservation near Mt. Pleasant. He brought a habeas claim on the basis that the parcel of land on which he committed the crime was “Indian Country” and outside the state’s jurisdiction. He lost. We’re looking up the briefs of the case right now, but the decision rested on the federal Swamp Lands Act. In short, according to the COA, Congress granted certain swamp lands to the State in 1862, lands that otherwise would have become part of the Isabella reservation, so that those lands are not nor ever were Indian Country.

The Moses Court relied on a previous Mich. COA case, People v. Bennett, 491 N.W.2d 866 (1992), which included this language:

In this case, the parties have not presented evidence of the negotiations surrounding the formation of the Treaty of October 18, 1864. However, examining the treaty itself, it appears that the parties intended for the previously sold lands to be excluded from the reservation, because the Chippewas were granted all the “unsold” lands within the six townships. Given the plain language of the treaty, and the lack of evidence to the contrary, we believe the Chippewas would have understood at the time of treaty formation that they were not permitted to settle on or own any lands previously patented to individuals. [emphasis added]

It’s fairly difficult for me to believe that the Ogemuk knew about the Swamp Land Act in 1864, especially given that most Indian agents of the day supposedly schooled in India-related laws and regulations had no clue. And to have attributed to them this knowledge, when they did not speak English, on the basis that the plain language is the plain language, is a sad joke. Of course, the Supreme Court cases on treaty interpretation do the same thing.

This proves once again that tribal reservation boundaries should only be litigated after the tribe has done its research. And it is unfortunate that so many of these cases arise in the context of criminal law where convicts or defendants are seeking to vacate a conviction on jurisdictional bases. Courts there are just looking for any out.

The Keno Case

Matthew L.M. Fletcher1 Comment

In State of Michigan v. Little River Band of Ottawa Indians et al., the State is suing LRB and LTBB for violation of the gaming compacts requirement that the tribes share revenue from their gaming operations — LTBB Compact & LRB Compact. The tribes stopped payment when Governor Granholm authorized the state to begin keno at bars and restaurants. Senior District Court Judge Miles granted the State’s motion for summary judgment last April. The appeal to the Sixth Circuit is forthcoming. As those briefs go online, we will upload them here.

Judge Miles’ opinion is here: Opinion and Order

The State’s motion for summary judgment is here: Motion for Summary J

The tribes’ response brief is here: Tribes’ Brief

The State’s reply brief is here: Reply Brief

Tribal Exhaustion Doctrine & KBIC Tribal Court

Matthew L.M. Fletcher

Judge Quist in the Western District of Michigan recently remanded a tort claim back to tribal court in accordance with the tribal court exhaustion doctrine, as articulated in National Farmers Union and Iowa Mutual.

The case is called Michigan Property & Casualty Guaranty Association v. Foucault-Funke American Legion Post 444.

The motion to dismiss is here: Memorandum in Support of Motion

The response brief is here: Response Brief

Judge Quist’s opinion remanding the case to tribal court is here: Opinion

Saginaw Chippewa 2% Distribution History — $66.9 Million and Counting

Matthew L.M. Fletcher

From Joe Sawmick, spokesperson for the Saginaw Chippewa Tribe: Saginaw Chippewa 2 Percent Distribution History

So that’s about 3 and a quarter billion in net revenue. Whew.